Lucore, Sr. et al v. Barasch et al

Filing 22

ORDER denying without prejudice Appellants' respective motions for leave to proceed in forma pauperis (Docs 2 , 3 ). If Appellants do not pay the required filing fees or submit adequate proof of inability to pay the fee by November 30, 2017, this case will be dismissed without prejudice and they will have to begin again by filing a new appeal. Signed by Judge John A. Houston on 9/21/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 IN RE: STEVEN HARRY LUCORE, SR. and JUDY LYNNE LUCORE, 13 14 15 Civil No.: 17cv34-JAH (JLB) Bankruptcy No. 13-08534-MM Bankruptcy Adversary No. 16-90149-MM Debtors. ORDER DENYING WITHOUT PREJUDICE APPELLANTS’ RESPECTIVE MOTIONS FOR LEAVE TO PROCEED IN FORMA PAUPERIS [DOC. NOS. 2, 3] IN RE STEVEN HARRY LUCORE, SR. AND JUDY LYNNE LUCORE, Plaintiffs and Appellants, 16 17 v. 18 U.S. BANK, N.A., AS TRUSTEE, etc., et al., 19 20 Defendants and Appellees. 21 22 On January 9, 2017, Mr. Steven Harry Lucore, Sr. and Mrs. Judy Lynne Lucore, 23 proceeding pro se (collectively, the “Appellants”), filed an appeal from the December, 24 2016 order of the Honorable Margaret M. Mann, United States Bankruptcy Judge, 25 dismissing the adversary proceeding against U.S. Bank, N.A., as trustee for the certificate 26 holders of Bank of America Funding Corporation Mortgage Pass-Through Certificates, 27 Series 2006-H; Adam Barasch; and Severson & Werson, a professional corporation 28 (collectively, “Appellees”). See Doc. No. 1 at 1-15; Bankruptcy No. 13-08534-MM. 1 17cv34-JAH (JLB) 1 Appellants did not prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time 2 of filing. Instead, Appellants, respectively, filed individual motions for leave to proceed in 3 forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915(a). See Doc. Nos. 2, 3. After a careful 4 review of Appellants’ respective IFP motions, and for the reasons set forth below, both 5 motions are DENIED WITHOUT PREJUDICE. 6 I. Leave to Proceed IFP 7 All parties instituting any civil action, suit or proceeding in a district court of the 8 United States, except an application for writ of habeas corpus, must pay a filing fee of 9 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 10 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 11 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 12 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Courts grant leave to proceed IFP when 13 plaintiffs submit an affidavit, including a statement of all of their assets, showing the 14 inability to pay the statutory filing fee. See 28 U.S.C. § 1915(a). 15 A. 16 In support of his motion, Mr. Lucore submitted a short form Application to Proceed 17 in District Court Without Prepaying Fees or Costs. See Doc. No. 3. Therein, Mr. Lucore 18 declares his regular income, assets, expenses, and liabilities. With respect to income, Mr. 19 Lucore indicates that he earns $1,216.67 per month ($916.67 per month from self- 20 employment, and $300.00 per month in rental property income). Id. at 1. Mr. Lucore’s total 21 assets, not including the undisclosed value of the real property generating the declared 22 rental income, equal $9,200.00 (bank account(s) contains $200.00 in cash; $2,000.00 worth 23 of personal property; and two automobiles worth $7,000.00: a 1999 Ford F-350, worth Ability to Pay the Statutory Filing Fee 24 25 26 27 28 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 2 17cv34-JAH (JLB) 1 $5,000.00; and a 2006 Chevy Cobalt, worth $2,000.00.) Id. at 2. Mr. Lucore’s share of 2 regular monthly expenses equals $615.00 (listed expenses covered by Mr. Lucore include 3 utility fees (power, water, telephone), gas, car insurance, and Chapter 13 bankruptcy 4 payment). Id. Last, Mr. Lucore indicates that he owes $1,800.00 in “hospital medical 5 expenses.” No repayment details were provided regarding the medical expenses owed (i.e. 6 installment amounts/frequency), or whether the installment amounts are included in his 7 Chapter 13 bankruptcy payment. Id. 8 In support of her motion, Mrs. Lucore also filed a short form declaration, indicating 9 that her sole source of income is a social security payment in the amount of $348.00 per 10 month. See Doc. No. 2 at 1. Mrs. Lucore declares ownership in the same assets as Mr. 11 Lucore (worth $9,200.00 total; not including the undisclosed value of the real property 12 generating the declared rental income). Id. at 2 cf Doc. No. 3. Mrs. Lucore’s share of 13 monthly expenses equals $290.00. Doc. No. 2 at 2 (noting that she pays for food and some 14 of the fuel costs, and Mr. Lucore covers everything else listed). Last, Mrs. Lucore indicates 15 that she has no financial dependents, debts, or other financial obligations. 16 In light of the disclosures in both declarations, the Court is not convinced that 17 Appellants are unable to pay the $400.00 statutory filing fee. Indeed, subtracting all stated 18 expenses from income (without including the stated resale value of Appellants’ assets) 19 reveals a monthly net positive discretionary income exceeding the amount required to 20 maintain this action. Accordingly, both motions for leave to proceed in forma pauperis are 21 DENIED WITHOUT PREJUDICE. 22 II. Conclusion and Order 23 Based on the foregoing, this bankruptcy appeal cannot proceed until Appellants’ 24 have either paid the statutory filing fees required to maintain this action or are found 25 qualified to proceed in forma pauperis. Accordingly, Appellants are hereby notified that 26 in order to avoid dismissal of this case, they must either pay the requisite statutory 27 filing fee or submit adequate proof of inability to pay the filing fee no later than 28 November 30, 2017. If Appellants do not pay the required filing fees or submit adequate 3 17cv34-JAH (JLB) 1 proof of inability to pay the fee by November 30, 2017, this case will be dismissed without 2 prejudice and they will have to begin again by filing a new appeal. 3 IT IS SO ORDERED. 4 5 DATED: September 21, 2017 6 7 8 _________________________________ JOHN A. HOUSTON United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 17cv34-JAH (JLB)

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